Originally Posted by loquitur

What I can tell you is that, when I worked in the courthouse for a federal judge 21 years ago, one thing I learned fairly quickly is that reporters (even legal reporters, who are supposed to know the process) simply do not and probably cannot get it right. If they get 80-85% they're ahead of the game. It's not malicious; it's a combination of time pressure, lack of immersion, issues of perspective and idiosyncracy.

And that's why it's important to get your news from different sources so that you can filter your inputs. I have no idea what the evidence will show down the road - and neither do you. What I do know is that I have a life and I'm not going to spend it reading trial transcripts in a case I'm not involved in.

The other thing is this: have you decided that Cathie Martin and Ari Fleischer are reliable witnesses? Would your opinion have been different a year ago, before you knew they were going to testify for the prosecution in the Libby trial? Mull over that question and be honest with yourself, then consider the implications of your answer.

I should add something else, and this is politically incorrect. In most criminal trials the defendant is guilty. There are a few reasons for that. (1) Prosecutors have limited resources and don't want to squander them on cases where there is substantial doubt about whether they can get a conviction. (2) The criminal process is set up so that there are levels of proof at succeeding stages of the case. As you go through the process, the chance that the person identified isn't guilty of something gets smaller and smaller.

There are countervailing propositions, though: (1) if a defendant knows he is likely to be convicted he usually can improve his outcome by cutting a deal to avoid trial and give the prosecutors something. (2) Related to this, the more chance a defendant sees of possibly being acquitted due to failure of proof or otherwise (and remember, a prosecutor has to prove beyond a reasonable doubt, which is a high standard), the more likely he'll go to trial. So if the defendant goes to trial and didn't cop a plea, his/her attorney has made a judgment that there is a reasonable chance of punching through the government's proof.

That's the reasoning in a normal case. When there is a special prosecutor the calculation is totally different because the special prosecutor by definition has no other cases competing for his attention, and the target of the inquiry is likely to be high enough in the hierarchy that the chances of a plea go down because there is no one to be offered up in a plea deal. That drives more of the cases to trial, and also means that the evidence is likely to be somewhat thinner. Bear in mind, though, that Fitzgerald declined to indict a lot of others, which means he made a judgment he couldn't get convictions as to them but could get a conviction as to Libby.

I'm pointing all this out because the dynamic of how these things work tends to get lost here. I said up above that I am generally suspicious of special prosecutors because they get married to their missions. That doesn't mean they're always wrong, but you can't make the inferential leap from the existence of evidence for an indictment to sufficiency of evidence for a conviction, especially in a case like this one. Otherwise you have to accept Ken Starr's work, too.